Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.

I guess that you may’ve already been flooded with requests for an explanation on this. I saw your presentation at the most recent RFSA Conference where you briefly discussed this case, with recent developments, any chance you could provide us concerned observers with any additional comments?

The issue relates to the prosecution of an RFS volunteer for Dangerous Driving, the details are set out below. I have not been ‘flooded with requests’ on this matter but I have made some comments on it, see

The problem with making a comment on the matter is that I have no definitive (read judicial) description of what happened. The matter may have been heard in both the NSW Local Court and the NSW District Court but neither the decision of the magistrate nor the judge has been published (see Accessing a judge or magistrate’s reasons for decision (November 18, 2016)). All I have is what the VFFA has written and with respect that is clearly only one side and what is more it confuses the role of the police and RFS.

With that limitation in mind I’ll reproduce what the VFFA says are the Key Events in a Timeline and make comment on them.

VFFA Timeline

My comments on legal issues

Hazard Reduction scheduled and commenced on Thursday the 20th of November 2016. Deputy Captain Oliver _______ was on route to his station to attend.

The road to the fire station was the only road to access. Oliver was required to enter the fire ground in his private vehicle after clearly identifying himself to traffic controllers who had closed the road to the public.

Oliver arrived at his fire station to be formally asked by the Officer-in-charge of the Hazard Reduction, DFCO, Inspector … to stand down from starting his shift and wait inside the fire station. Police were called.

Oliver enquired as to why Police had were called. Inspector …said that a complaint had been made against Oliver and Police are to investigate. No further detail was shared.

Police are responsible for law enforcement. If a complaint of illegal conduct has been made it is appropriate to pass that onto police. The RFS is in a difficult position. It may want to support its members but it cannot be seen to shield them from the criminal law. Asking the member to explain their position may well put the Inspector in the position of a witness who could be compelled to give evidence if the member made any admissions.

As noted below the initial complaint was made by another RFS member. That adds to the difficulty because if the RFS refused to act on the complaint that member would also feel disgruntled. Passing the matter to an independent investigator (ie police) may have been a very reasonable thing to do.

This was not an area where ‘natural justice’ is required as the RFS is not the agency taking action. They pass it onto police and it is up to police to investigate and to work within the boundaries of natural justice (discussed further, below)

Without more detail it is impossible to conclude that this was inappropriate.

Appropriate. It is noted that the RFS did not ask the driver for his version of events but that is the point of a police interview, remembering that a person being interviewed by police is under no obligation to answer the police officers questions.

This is where the natural justice obligation, to allow the driver the opportunity to respond to the allegation, was met.

No charges or arrests were made. The Police officer spoke with other RFS staff at the fire station and left.

The police were not required to issue any proceedings at that time. In NSW, prosecution for summary matters (including minor traffic matters) must be commenced within 6 months of the date of the alleged offence (Criminal Procedure Act 1986 (NSW) s 179).

After the Police Officer left, Inspector … held a meeting with Oliver and his Captain. Oliver was informed that a complaint against him had been made by an RFS member, alleging he had drove past another RFS member traveling somewhere between 70 to 80km/h – this was the first time Oliver had been told what he had allegedly committed.

We can’t know if that ‘was the first time Oliver had been told what he had allegedly committed’ because we are not told what was said during the police interview. I find it hard to believe that the police did not communicate the nature of the allegation.

But it would seem appropriate for the RFS to explain the position after the police interview and in the presence of the members captain in order to reduce the risk that the member would make admissions (no doubt having been cautioned by police) and that those members would then be in a position where they may be witnesses.

Almost 4 months of silence from both NSW Police and the RFS. Oliver was later charged by Police with Dangerous Driving to appear in Local Court in May 2017.

The decision to prosecute would be a matter for police, not the RFS. As noted the police had 6 months to commence proceedings.

On their facebook page, the VFFA say:

“… some members of the NSW Police who were not involved in the investigation remarked that they would not be interested in this matter because a Police Officer was “not there, they did not see it and no one was injured”.

The same Police Officers also remarked that “no one can judge speed, only the Police. Not the RFS”.

That is irrelevant. The decision to prosecute rests with the investigating officer, and is a discretion held by him or her alone. It is irrelevant that others police ‘would not be interested’ and no doubt they did not investigate the matter. We do not know what the person who made the initial complaint observed and what information they were able to give police.

As for the comment “no one can judge speed, only the Police. Not the RFS” that is simply not true. We all judge the speed of other vehicles all the time and we can make assessments to estimate the speed of a vehicle or whether in all the circumstances the observed driving was dangerous. The weight of that evidence in court will vary in all the circumstances but it’s not true that only a police officer can give that evidence. In this case we are told that it was another RFS member who reported what he or she perceived was dangerous driving so it’s not the case that it was ‘the RFS’ that made an assessment of the person’s speed.

A lengthy 4 day Local court hearing concluded with Oliver being found guilty.

The role of police is not to determine whether someone is or is not guilty of an offence. Their job is to collect evidence and if there is a prima facie case, to put the matter before a court for a judicial officer to determine. In this case, it must be that the magistrate was satisfied that the prosecution had proved its case beyond reasonable doubt.

Magistrates are not simply the mouthpiece of police so he or she would have considered the evidence, whatever that evidence was, to reach that conclusion.

Oliver immediately appealed and on the 3rd of October 2018, District Court Judge Paul Conlan quashed ALL charges against Oliver. He was completely exonerated.

We do not know the basis of the Judge’s decision, as the reasons are not published. The right of appeal exists because judicial officers do get it wrong, sometimes getting the law on evidence or the law about the offence wrong, sometimes misunderstanding the evidence etc.

Oliver has applied twice for ex-gratia assistance from the Commission of the RFS. One was rejected and the second request with no reply to date (3+ months).

Service Standard 1.1.24 deals with Assistance in legal matters for Members of the NSW RFS. That standard notes that ‘The provision of legal representation is discretionary. That is, there is no automatic right of legal representation’.

We do not know why the application was rejected or at what level. The final approval rests with the Secretary of the Department of Justice, not the Commissioner.

After Oliver applied the first time for ex gratia assistance, the RFS suspended his RFS membership (Oliver had only been charged at this stage, not attended local court) stating the reason he was found guilty of a criminal charge.

A person may be removed from the RFS if they are ‘convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more …’ (Rural Fires Regulation 2013 (NSW) r 7). Being charged is not equivalent to being convicted.

It is not clear what offence the driver was charged with. The offences of ‘dangerous driving’ in the Crimes Act 1900 (NSW) s 52A relate to ‘dangerous driving causing death’ or ‘grievous bodily harm’. I infer they are not relevant.

The most likely offence would be under the Road Transport Act 2013 (NSW) s 117 which says ‘A person must not drive a motor vehicle on a road furiously, recklessly or at a speed or in a manner dangerous to the public.’ The maximum penalty ofr a first offence is 20 penalty units or 9 months imprisonment. For a second offence, the maximum penalty is 30 penalty units or 12 months imprisonment. This would be a relevant offence for the purposes of r 7 of the RFS regulations if it was a second offence. We do not know this driver’s traffic history.

Because this offence is an offence under the Act, the exemption from the Road Rules (Road Rules 2014 (NSW) r 306) has no application.

After reviewing the RFS’s own Standard Operation Procedures for RFS Volunteer’s, Oliver’s solicitor successfully appealed his suspension and he was re-inducted as a RFS volunteer with full rights again.

It would appear that the RFS made, and accepted that it made, an error.

At no stage since the alleged incident (over a 2 year period), has anyone from the NSW Rural Fire Service Head Office or even locally at Northern Beaches RFS District, been in contact with Oliver to check on his wellbeing.

To date, Oliver has had zero support from the RFS.

Now cleared of all charges, Oliver faces legal bills of over $100,000.

What is missing (and appropriately missing) is any statement by the driver or the VFFA as to what the driver’s response to the allegation was. Did he deny driving as alleged or was the defence simply that the prosecution did not have evidence to prove it? As a lawyer I understand and accept an accused person’s right to put the Crown to their proof. If the Crown cannot prove their case the accused is entitled to an acquittal.

I say it is appropriate for the VFFA not to say what the driver’s response is as the driver is not required to give an explanation or respond to allegations here or anywhere else. Further, if there were incriminating statements made they may be able to be used against him. One has to remember that even if this member says he was not driving as alleged, another member says he was and that must put the RFS in an invidious position.

The VFFA says:

The VFFA is deeply concerned that this case sets a precedent; Volunteer Firefighters can be subject to prosecution if salaried staff, without question or any internal investigation, call the NSW Police to report alleged actions of a Volunteer Firefighter based on hearsay.

In legal terms, the case sets a precedent for nothing. Volunteer firefighters can be subject to prosecution if a complaint is made to police and police determine that there is a case to answer. The subtext of the quote, above, is that the only reason this person was charged was because the RFS inspector rang police. That denies the agency of the police officer that is the decision to commence prosecution was his or hers alone, and it denies the role of any other person involved including the other RFS volunteer that made the complaint.

The prosecution would not and could not proceed on the basis of hearsay evidence alone. The VFFA say that there was ‘A lengthy 4 day Local court hearing’. There must have been evidence (even if later rejected by the District court) that extended beyond an inspector saying ‘I was told …’ I would infer that the person who observed the driving gave evidence, and that would not be hearsay. We don’t know what other evidence the Crown relied on as we don’t have either the Local Court Magistrate’s or the District Court Judge’s reasons to read.

With respect to reporting a matter to police there is no requirement for an ‘internal investigation’ by the RFS and that may indeed be detrimental to the member if he or she made admissions without the formal protections that must apply when being interviewed by police. It may also have negative impact if the RFS is seen to be judging whether someone is guilty of a criminal offence when that is not the role of the RFS. An allegation of criminal conduct was made and passed to police for investigation. That seems appropriate to me.

The VFFA’s position is entirely one sided (which may be expected as an advocacy organisation). No doubt the RFS inspector, the informant police officer, the person who first reported concerns about the driving and the RFS Commissioner would have different versions of what happened and explanations for their decisions. There is no attempt to explain their position. Because it is so ‘one sided’ it is hard to draw any meaningful conclusions as to anyone’s conduct.

The VFFA also says:

Every single NSW Rural Fire Service Volunteer is at risk if they receive either a pager or phone call seeking their attendance at their local NSW RFS Fire Station, and in order to get there they drive in their private vehicle along a public road, and the road forms part of a ‘Fireground’, then that Volunteer Firefighter is at risk of being accused of speeding, driving through smoke without their hazard Lights on or being on the ‘Fireground’ without approval – even if the traffic controllers allow them to proceed.

Without access to the decision of the District Court Judge one cannot make those inferences. They are at risk if a person makes a complaint to police and police form the view that there is sufficient evidence to justify a prosecution. The only lessons that can be drawn are:

If police believe they have sufficient evidence you can be charged with an offence;

The police and courts don’t always get it right.

Just because a person is charged with an offence, it does not mean they are guilty.

Those lessons apply to everyone, everyday.

Conclusion

The problem with all the VFFA statements in this matter is they lack sufficient detail to make any informed comment on the matter. What we can know is that, at the end of the day, the driver was acquitted and he is entitled to the benefit of that decision. That obtaining an acquittal is long, arduous and expensive is indeed a tragedy in today’s legal system but at least the courts do give the opportunity to defend allegations and appeal against decisions that are wrong in fact or law.